Payback time? Promoted employee fails to obtain required license

Q         Thirty months ago, we promoted an individual to a position that requires a special license and included a pay raise. He has repeatedly failed to get his license and, as a result, has never been able to perform the job we hired him to do. We have demoted him. Are we able to retrieve back wages for the pay raise he received since he didn’t fulfill the required certification?

A   Employers generally aren’t permitted to make unauthorized deductions from employees’ wages. Accordingly, unless you entered into an agreement with the employee when you promoted him that allows you to recover back wages because of his failure to obtain the necessary license by a specified date, then you don’t have the authority to take deductions from his future wages to recoup the pay raise.

On a going-forward basis, however, you can reduce an at-will employee’s compensation at any time as long as (1) the pay being reduced or eliminated hasn’t already been earned and (2) the reduction won’t bring his earnings below the applicable minimum wage.

Erica E. Flores is an associate at the firm of Skoler, Abbott & Presser, P.C. Erica can be reached at 413-737-4753 or eflores@skoler-abbott.com.